CourtListener 10680267

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official text of the opinion.

In the Supreme Court of Georgia

Decided: September 17, 2024

S24A0917. CATOOSA COUNTY REPUBLICAN PARTY et al. v.
HENRY et al.

PETERSON, Presiding Justice.

Elections matter. For this reason, parties wanting a court to

throw out the results of an election after it has occurred must clear

significant hurdles. And for decades, our precedent has made crystal

clear that the first such hurdle is for the parties seeking to undo an

election to have done everything within their power to have their

claims decided before the election occurred. But in this case, the

parties wanting us to throw out election results ignored this long-

standing rule, did nothing to expedite this appeal, and instead

requested delays. Accordingly, we dismiss the appeal without

reaching the merits (or lack thereof) of their claims.

The appellants, who are the Catoosa County Republican Party
(“CCRP”) and its executive officers (collectively, “the CCRP

Defendants”), tried to stop certain candidates from qualifying for the

May 2024 Republican primary for certain county commission seats,

citing a statute that provides in part that “[u]nless otherwise

provided by law, all candidates for party nomination in a state or

county primary shall qualify as such candidates in accordance with

the procedural rules of their party[.]” OCGA § 21-2-153 (b). A

document introduced as an exhibit before the trial court, purporting

to be the local rules of the CCRP, provides that “[i]n order to qualify

for office as a Republican, a potential candidate must be approved

by the [CCRP] County Committee by a majority vote within twelve

(12) months prior to the date he or she attempts to qualify.” And the

document also provides that “[i]n order to qualify for office as a

Republican in Catoosa County, a potential candidate must present,

at the time of qualifying, a signed and notarized affidavit from the

[CCRP] Chairman or Secretary, stating the date and location of the

meeting that the [CCRP] County Committee voted to allow the

proposed candidate to qualify for office as a Republican.”

2
On March 4, 2024, Steven M. Henry, Larry C. Black, Jeffrey K.

Long, and Vanita C. Hullander (“the Candidates”) each filed a

separate petition against the CCRP Defendants. The Candidates

alleged that although they met the statutory requirements to qualify

as candidates for the Republican primary for various positions on

the Catoosa County Board of Commissioners, earlier that day the

CCRP’s agent had “denied” the Candidates “the right to qualify.”

The petitions sought temporary restraining orders and interlocutory

and permanent injunctions prohibiting the CCRP Defendants from

preventing their qualification as candidates. The qualifications

period began on March 4, 2024, and was set to end at noon on March

8, 2024. See OCGA § 21-2-150 (setting primary election for May 21,

2024, the Tuesday of the twenty-fourth week prior to the November

general election in an even-numbered year); OCGA § 21-2-153 (c) (1)

(A) (setting qualification for the eleventh week immediately prior to

state or county primary).

On March 5, the trial court issued temporary restraining

orders (“the TROs”) “enjoining and restraining” the CCRP

3
Defendants “from prohibiting the qualification of” the Candidates as

Republican candidates for the May 21 primary. On March 6, the

CCRP Defendants filed motions to lift the TROs and dismiss the

petitions, arguing, among other things, that the TROs and the

petitions were attempting to force the CCRP Defendants to engage

in particular speech and associate with “inauthentic Republicans” in

violation of the First Amendment. On March 7, following a hearing,

the trial court ordered the cases to be consolidated and denied the

motions to lift the restraining orders and dismiss the cases. This

order concluded that the CCRP’s rule requiring a “Qualifying

Affidavit” from the CCRP could not be enforced because (1) it was

not a “procedural rule”; (2) the CCRP’s rules were void because there

was no attestation that the rules submitted by the Candidates as an

exhibit were “the adopted rules” and they did not bear “any other

certification that would be required by OCGA § 21-2-111 (c)”; and (3)

the state Republican Party executive committee rules have no

provision regarding pre-approval of candidates for other offices, such

that the rule was not “consistent with law and the rules and

4
regulations of the state executive committee[.]” OCGA § 21-2-111 (c).

The trial court ordered that county sheriff’s deputies should escort

the Candidates to the CCRP’s “qualifying location” and “enforce” the

previous day’s order and that “a $1,000 fine shall be hereby enforced

per Respondent per Petitioner for each hour that Respondents

prohibit the qualification of Petitioners.” (Emphasis in original.)

The CCRP Defendants unsuccessfully sought to appeal, the

Candidates sought contempt, and the trial court in a March 8 order

stated that the fines threatened in the March 7 order “would

continue to accrue” until the noon qualifying deadline but the court

would set another date for a hearing on the motion for contempt. In

an attempt to fashion a remedy for the Candidates, the trial court

“order[ed] that each of the Petitioners is entitled to qualify with the

Catoosa County election superintendent at their offices pursuant to

OCGA § 21-2-153 (c) (2) as if the county political party had not

provided sufficient notice and as if the three-day notice had been

5
provided.”1 At 2:03 p.m. on that same day, the CCRP Defendants

filed a notice of appeal to the Court of Appeals. The case docketed at

the Court of Appeals on March 28, 2024. On April 12, 2024, the

Court of Appeals transferred the case to this Court as within our

jurisdiction over “[a]ll cases of election contest.” Ga. Const. of 1983,

Art. VI, Sec. VI, Par. II (2).

We agree with the Court of Appeals that this Court, rather

than the Court of Appeals, has subject matter jurisdiction over the

CCRP Defendants’ appeal. See Ga. Const. of 1983, Art. VI, Sec. VI,

Par. II (2). But we nonetheless dismiss the appeal.

In their appeal, the CCRP Defendants ask this Court to reverse

the trial court’s ruling below — which declared that each of the

Candidates was “entitled to qualify with the Catoosa County

election superintendent” under OCGA § 21-2-153 (c) (2) — and

1 OCGA § 21-2-153 (c) (2) provides: “If a political party has not designated

at least 14 days immediately prior to the beginning of qualifying a party official
in a county with whom the candidates of such party for county elective offices
shall qualify, the election superintendent of the county shall qualify candidates
on behalf of such party. The election superintendent shall give notice in the
legal organ of the county at least three days before the beginning of qualifying
giving the dates, times, and location for qualifying candidates on behalf of such
political party.”
6
dismiss the Candidates’ petitions. Thus, it appears that the CCRP

Defendants essentially seek a ruling that honors the CCRP

Defendants’ decision to block the Candidates’ qualification.2

Although the record provides little indication of what happened

after the trial court on March 8 ordered that the Candidates be

permitted to qualify, the CCRP Defendants’ requested relief would

appear to require upending the results of a completed primary

election as to one or more commission seats. See OCGA § 21-2-150;

OCGA § 21-2-501 (a) (1) (setting primary runoff for June 18, 2024,

the twenty-eighth day after the holding of the preceding primary).3

2 As set forth in the March 7 and March 8 orders, the trial court stated

that certain “fines” would accrue in the event of noncompliance. But in their
briefing before this Court, the CCRP Defendants make no argument specific to
the fines. Moreover, the record does not contain any particular order holding
any litigant in contempt or actually imposing a specific “fine.” And the record
shows that the trial court indicated that it would take up the Candidates’
motion for contempt at a later hearing, which does not appear to have yet
occurred. Accordingly, there appears to be nothing ripe for our review in the
trial court’s threat of a particular future punishment for noncompliance with
its orders. Nor does our dismissal of this appeal preclude the CCRP Defendants
from pursuing through applicable procedures an appeal from any order on such
an issue if the trial court chooses to enter one on remand.
3 As noted above, the notice of appeal was filed after the close of

qualifying at noon on March 8. The Candidates’ brief to this Court, filed before
the primary runoff, represents that each of the Candidates “qualified with the
Board of Elections by noon on March, 8, 2024[,]” and that each “was either
successfully nominated or advanced to a runoff election” in the primary.
7
Given the CCRP Defendants’ failure to litigate this appeal with

dispatch, our long-standing precedent directs us to decline to

consider their arguments.

“[W]e have consistently held that” we will not review

challenges to a candidate’s qualifications “once the succeeding

election at issue has occurred.” See Miller v. Hodge, 2024 WL

3801827, *2 (1) (Case No. S24A0490, decided August 13, 2024). We

repeatedly have dismissed appeals in the context of pre-election

challenges to candidates’ qualifications where the election at issue

already has taken place by the time that the appeal is disposed of,

particularly where the appellant does not exhaust avenues to have

the appeal disposed of prior to the election. See, e.g., id. at *2-*5 (1)

(dismissing appeal of decision dismissing petition challenging

candidate’s eligibility for special election and raising issues with

regard to ballot form, where challenger did not seek expedition of

consideration of petition or stay of runoff and instead sought time to

file supplemental briefing after the runoff had occurred) (citing

cases). Our practice in this regard appears to be “based on various

8
prudential reasons for courts to limit their exercise of jurisdiction

and to refrain from invalidating elections after the fact when the

challenging party has not acted with dispatch to litigate their claims

before a subsequent election[,]” in particular, preventing the

unnecessary expense of holding more than one election, assuring the

finality of results, and respecting the “sanctity” of elections “wherein

the will of the people . . . is the supreme law.” Id. at *4 (1). Moreover,

in holding that challengers must make every effort to dispose of

election disputes with dispatch in order to avoid dismissal, “we have

noted that the General Assembly ‘has demonstrated that election

contests are to be heard with the greatest of expedition.’” Id. at *3

(1) (quoting Swain v. Thompson, 281 Ga. 30, 31 (2) (635 SE2d 779)

(2006), which noted, for example, OCGA § 21-2-524 (a)’s

requirement that a petition contesting the results of a primary or

election must be filed within five days of the consolidation of election

returns).

Particularly relevant here, the statutory provisions

authorizing electors’ challenges to candidate qualifications contain

9
short deadlines, including a two-week deadline after the end of

qualifying for filing a complaint with the superintendent and a ten-

day deadline for appealing to a superior court a superintendent’s

decision on such a challenge. See OCGA § 21-2-6 (b), (e). This action

is not an election contest under OCGA § 21-2-520 et seq. or a

challenge to candidate qualifications brought under OCGA § 21-2-5

or OCGA § 21-2-6. Rather, although the CCRP Defendants are

challenging the eligibility of the Candidates for office, this unusual

action was brought by the Candidates themselves. Nevertheless, the

same prudential reasons counseling dismissal in more traditional

challenges to candidate qualifications or election results apply here,

where the CCRP Defendants assert their challenge to the

Candidates’ qualifications in a defensive posture.

We previously have applied our rule requiring a challenger to

act with dispatch in the context of a qualifications challenge where

the challenger failed to exhaust opportunities to resolve the dispute

prior to a primary. See Jordan v. Cook, 277 Ga. 155, 157 (587 SE2d

52) (2003) (affirming superior court’s dismissal of challenge to

10
candidate’s qualifications on the ground of delay where challenger

did not appeal the elections superintendent’s decision until after the

primary election — which also “served as the general election” for

the seat at issue — or seek a stay by the reviewing court). Indeed,

the sort of policy considerations behind our prudential rule,

identified above, apply even more strongly in the context of an

impending primary election. See Parham v. Stewart, 308 Ga. 170,

172 (1) (839 SE2d 605) (2020) (policy considerations counseling

parties and trial courts to act with dispatch to resolve election

contests “have even greater weight in primary election challenges).

Although the trial court worked quickly to resolve the parties’

dispute prior to the qualifying deadline, and the CCRP Defendants

quickly filed a notice of appeal, any sense of urgency apparently

ended at that point. The CCRP Defendants appealed to the wrong

court — with a notice of appeal that jumbled the questions of subject

matter jurisdiction and procedural jurisdiction — and filed nothing

in that court after the case was docketed there. Once the appeal was

transferred to this Court on April 12, at which point the election was

11
less than six weeks away — possibly enough time to consider the

merits of the CCRP Defendants’ appeal, but only if the timetable for

deciding the case were expedited — the CCRP Defendants did not

seek expedited review or emergency relief. See Supreme Court Rule

9 (“The Court may issue an order of supersedeas or other similar

orders whenever deemed necessary.”); Supreme Court Rule 26 (3)

(providing for emergency motions, which must contain “an

explanation as to why an order of this Court is necessary and why

the action requested in time-sensitive”); Supreme Court Rule 26 (4)

(providing for motions to expedite in “extraordinary circumstances

such as when the appeal would become moot absent an expedited

decision”); see also Bell v. Raffensperger, 311 Ga. 616, 618 n.3 (858

SE2d 48) (2021) (noting that “an appellant seeking to rely on the

expedited-review provision in OCGA § 21-2-172 (c) should alert the

Court that the appeal involves a decision on a nomination petition

by filing a motion for expedited appeal citing that provision”);

Whitmer v. Thurman, 241 Ga. 569, 569 (247 SE2d 104) (1978)

(noting that this Court had granted prospective candidate’s motion

12
to expedite his appeal of lower court’s decision that he was not

eligible for office “due to the necessity of a decision prior to the

primary election”).

Instead of asking this Court to move quickly, the CCRP

Defendants did the opposite. On April 30, 2024, notwithstanding

that the transfer of the case had afforded them additional time to

prepare a brief, the CCRP Defendants filed in this Court a request

for extension of time to file their principal brief, which had been due

on May 6, 2024. That request was granted, and the CCRP

Defendants filed their brief on the last day of the newly extended

period. They then agreed to have the case orally argued; the

Candidates filed a request for oral argument, representing that the

CCRP Defendants also “desire[d] to argue orally.” The oral

argument request did not seek expedited scheduling of oral

argument; indeed, it said counsel for the Candidates preferred “to

wait until after the run-off election to confirm who shall make said

oral argument.” The CCRP Defendants did not raise any objection

13
to such a time frame or otherwise seek to expedite oral argument.4

By the time briefing in the case was completed with the filing of the

CCRP Defendants’ reply brief on June 20, the primary election,

including a runoff, already had occurred.

Our precedent required the CCRP Defendants to do all they

could to ensure that their claims were resolved before the primary

election occurred. But they chose delay instead. “Under these

circumstances, the prudential concerns recognized by this Court, as

informed by the relevant statutory framework, when considering

similar dilatory election challenges counsel us to dismiss this

appeal.” Miller, at *5 (1).

Appeal dismissed. All the Justices concur.

4 We denied the request for oral argument.

14
BETHEL, Justice, concurring.

I join the Court’s opinion in full. I write separately to highlight

an important issue raised by but not reached in the case at hand

that, I expect, this Court sooner or later will be called on to resolve,

namely, whether under OCGA § 21-2-153 (b) county-level party

organizations, like the Catoosa County Republican Party (CCRP),

are empowered to promulgate procedural rules5 for the qualification

of candidates in primary elections.

Under Georgia law, “all candidates for party nomination in a

state or county primary shall qualify as such candidates in

accordance with the procedural rules of their party[.]” OCGA § 21-2-

153 (b) (emphasis supplied). The trial court here found that the

Candidates had complied with the mandates of OCGA § 21-2-153,

which establishes requirements and procedures for qualifying as a

candidate for a party nomination in a state or county primary, and,

thus, were entitled to qualify as candidates for the Republican

5 I express no opinion regarding the question of whether the CCRP rules

at issue in this case are procedural.
15
primary in Catoosa County. But on appeal, the CCRP Defendants

argue that this finding was erroneous because the Candidates failed

to obtain a “qualifying affidavit.” The affidavit requirement invoked

by the CCRP Defendants stems from a rule promulgated not by the

state Republican party but by the CCRP. Thus, implicit in the CCRP

Defendants’ argument is the notion that “party,” as the term is used

in OCGA § 21-2-153 (b), encompasses not only state-level party

organizations but county-level party organizations as well.

It seems likely to me that “party” is inclusive of party

organizations that have secured ballot access privileges under

Georgia law, such as the Georgia Republican Party (GRP) and the

Democratic Party of Georgia (DPG). It is not at all clear to me,

however—and the CCRP Defendants have not meaningfully

grappled with the issue—that the “party” referenced in OCGA § 21-

2-153 (b) extends beyond such entities to county-level party

organizations like the CCRP. 6 Of course, I cannot and do not express

6 Indeed, the trial court seems to have had similar questions about the

authority of the CCRP when, citing OCGA § 21-2-111(c), it noted in its March

16
any opinion about the proper reach of “party,” as that term is used

in OCGA § 21-2-153 (b), as it is unnecessary to the resolution of this

case. Rather, I flag the question for more serious consideration if and

when the theory espoused by the CCRP Defendants returns to this

Court. And in the event such a case comes before this Court, I hope

that the Solicitor General, the DPG, the GRP, and any other

interested parties will weigh in as amicus curiae on this important

issue.

7, 2024, order that the CCRP “rules are not ‘consistent with the law and the
rules and regulations of the state executive committee’ of the Georgia
Republican Party because the state executive committee rules have no
provision regarding preapproval of candidates for other offices.”
17

319 Ga. 794
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